Note: The writer of this article is not a lawyer, and any advice included in this article should not be taken as legal counsel.
I’ve been writing professionally for several years, and it’s allowed me to learn about a huge variety of subjects: I’ve been lucky enough to have interviewed everyone from politicians, traditional healers, crime scene cleaning experts and more. It’s also taught me a lot about the law, something few people think about when they imagine a career writer. But legal matters are vitally important for writers.
How do I know that I own the copyright on my work? How do I set up a contract with a publishing house or client? What rights am I selling? What will happen to my body of work when I pass away? These are all questions I’ve received from writers over the years. This article aims to answer a few of these legal questions so you know exactly what to do – and what you can’t.
Contracts for Writers: Selling Your Work
Explaining Copyright
At its most basic, copyright works like this: You own the copyright to a work (whether writing, sculpture or a painting) the moment that you’ve put it into creation. The crux of copyright infringement cases is proving the object in question’s original creation date in court. Yes, this means that time-stamps, date-stamps and e-mails matter.
Mailing it to yourself is a commonly repeated manner of protecting your own copyright, but there are times when this hasn’t stood up in court – and do you want to take that risk if it happens? You can have a manuscript individually copyrighted, or you can have a copy of your manuscript certified at your nearest court or police station – legally declaring, under oath, that the manuscript is yours.
And, of course, don’t spread your writing all over inbox before it’s been published; instances of plagiarism can be minimized with some healthy precaution.
Briefs and Writing Contracts
Most freelance writers will receive a brief from their editors once a pitch has been approved; this becomes true in fiction, too. In many cases, the publication will require you to sign a Contributor’s Contract and send it back to them: This usually contains the information about the publication, the author, the piece in question and the rights being sold – pay attention here!
In other cases, the brief you receive is valid as a contract. Thus, you want to make sure that your brief contains the necessary information about payment, word count and publication dates – if anything isn’t mentioned, be sure to ask.
Other times, a writing contract will have to be set up between author and publication, or sometimes between author and ghostwriter. Here, it’s always better to consult legal advice rather than be burned later: You can have someone set up a standard freelancing contract for your clients. Make sure that it contains all the information related to the project, including word count, delivery times, cancellation clauses – and what happens if you are ill or unable to complete the project; this kind of thing can happen, too!
Never sign a contract on the spur of the moment, even if you think you’ve read all of it through. Take it home, read it again, sleep on it and ask your lawyer. This will save you countless time later on.
Selling Rights
- Electronic Rights means that the publication purchases the rights specifically for publication by electronic means, such as an e-book or audio-book. With this, you also have examples of TV, Radio and Movie Rights, which licenses the work for use in other electronic media.
- All Rights mean that the publication has the right to publish at their discretion, and many times this means the author is unable to re-publish the work in its exact form again – unless you buy the rights over from the publication again so that you, again, become the owner of the work.
- First Serial Rights means that a publication, magazine or newspaper is buying the right to publish the piece, usually for the first time. Second Serial Rights, as you might have guessed, means that the publication is buying the rights to publish the piece as a re-print.
- Exclusive Rights are asked for when publications want to make sure a piece isn’t been published in (or being submitted to) another publication at the same time. This is usually tied to a specific time period, like three months, after which you can republish, resell and resubmit the piece as you like.
- Subsidiary Rights means that the publication can license the work to other publications, usually in syndication.
You should always take note of what rights you’re selling when submitting your work. This is usually available on the publication’s website, or ask if you aren’t sure.
Defending Your Work & More
When Clients Don’t Pay
Do you have a client that refuses to pay your invoice? This happens to a lot of freelancers. First, be sure to always submit an invoice. This is your legal agreement that a service has been ordered and that payment is outstanding. If the payment is not made, you have the right to re-submit the invoice again. For most, this is enough.
If this still gets no response, your next recourse will be a Letter of Demand, which states your case and gives them a reasonable time in which to settle the account. Your next recourse if this remains unsuccessful, approach a legal professional or the court for a civil claim.
Plagiarism
For plagiarism to stand up in court, it has to be proved that a piece was taken from another piece word for word, or written with enough similarities that confusion and association becomes likely. Most parodies are exempt from being called plagiarism, and instead fall under the laws of Fair Use – if it can be proved that it’s a commentary of the piece, not a reproduction.
Autoplagiarism is plagiarising yourself. In technical terms, this means reusing your own published words verbatim and without attribution somewhere else. If a piece has been published somewhere else, always ensure you have the permissions to reproduce the piece, and always attribute the source – yes, even if the original source was you to begin with.
If you’ve spotted your own work being plagiarised, your first step is to contact the publication or website (with the original source) and ask for a take-down in a reasonable manner and time.
Also inform the original publication or publisher of this infringement. If the website or publication doesn’t comply with a take-down, your next recourse will be to visit a legal professional, who will likely proceed with a Cease and Desist Letter.
Your Will
You should always have an updated will and testament – or in the event of the death, you will have no control of what happens to your assets, or your work. In the case of writers, your will is likely going to look a little different.
People should always appoint an executor to their will: The executor takes care of all the paperwork and the arrangements. But writers should appoint a literary executor in addition to their first executor to administrate only things that have to do with their writing, like distributing royalties or selling rights. It goes without saying that you should choose someone whom you trust to handle your work after you’re gone.
Your Work & Others
Mentioning Others
Can you mention others in your work? This is sometimes a legal gray area. While you can mention historical events and people in your work (i.e. Abraham Lincoln Vampire Hunter or Pride and Prejudice and Zombies), you should always err on the side of caution when we’re talking about real life people.
If not, basing fiction on real-life people (or outright mentioning them), can lead to defamation lawsuits, cease and desist letters and fiction being pulled from publication entirely – among others. (Again, if it can stand up in court that the resemblance is obvious, there will likely be a valid case here.)
Also remember that your work could have many real-life consequences that you didn’t think of when you wrote it. And, it can happen to anyone: Author James Patterson was working on a novel about a crazed killer who goes after Stephen King, but decided that it was a very, very bad idea once he realized that it might inspire someone to actually harm King or his family.
Mentioning Excerpts
If you want to mention an excerpt of a movie, song or other book in your work, it’s always best to get written permission from the original copyright owner before you do so. Yes, even if you are self-published. Not doing this is asking for a lawsuit, even if you think it’s just a quick mention or figure that it will go unnoticed. The front copyright-notice of many novels have a page just for copyright notices – and this is, of course, with very good reason. For songs, music and movies, contact the distributor or publisher for permission first. If you’re selling the book, it doesn’t automatically fall under Fair Use.
Collaborative Writing
When collaborating with other authors for your work – think of the often-collaborative Patterson as one example – then it’s important to have a contributors contract set up beforehand. This should include who contributes what and who gets paid what; it should also include information about who gets to publish the work – and legal background for what happens if this doesn’t take place, or one party needs to opt out of the contract.
Do you have more questions about writers and copyright that hasn’t been covered here? I’m happy to help where I can! Get in touch for questions, comments, hate mail or more.